Citation NR: 9700936
Decision Date: 01/14/97 Archive Date: 02/03/97
DOCKET NO. 94-34 455 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUE
Entitlement to an effective date earlier than October 15,
1990, for the assignment of a total (100 percent) rating for
a post-traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
R. T. Jones, Counsel
INTRODUCTION
The veteran served on active duty from July 1965 to July
1968.
This matter comes to the Board of Veterans’ Appeals (Board)
from a December 1993 decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Huntington, West
Virginia, which granted an increased evaluation of
100 percent for PTSD, pursuant to a decision by the Board in
November 1993, and assigned the effective date of that
increase as October 15, 1990.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he should be rated as permanently
disabled in 1981 because of his PTSD based on a treating VA
doctor’s report that his total disability started in 1981.
DECISION OF THE BOARD
The Board, in accordance with 38 U.S.C.A. § 7104 (West 1991),
has reviewed and considered all of the evidence and material
of record in the veteran’s claims file and VA Chapter 31
(38 U.S.C.A.) counseling file. Based on its review of the
relevant evidence, and for the following reasons and bases,
it is the decision of the Board that the preponderance of the
evidence is against the claim for an effective date earlier
than October 15, 1990, for the assignment of a total
disability rating for PTSD.
FINDINGS OF FACT
1. By rating action in November 1988, the RO granted service
connection and a 10 percent rating for PTSD, effective March
21, 1988 the date of claim.
2. The veteran appealed for an increased rating and in
February 1990 the RO granted an increased, 30 percent, rating
for PTSD; the veteran did not timely appeal following
notification of that rating action.
3. The veteran submitted a claim for an increased rating for
PTSD by correspondence received at the RO on October 15,
1990.
4. The RO denied the veteran’s claim, the veteran appealed
and by appellate decision in November 1993, the Board granted
a 100 percent schedular evaluation pursuant to 38 C.F.R.
§ 4.16 (c).
5. The RO thereafter assigned October 15, 1990 as the
effective date of the total rating.
6. It is not factually ascertainable that the veteran was
totally disabled due to PTSD at any time one year prior to
the receipt of the October 15, 1990, claim for an increase.
CONCLUSION OF LAW
An effective date earlier than October 15, 1990, for the
assignment of a total disability rating for PTSD is not
warranted. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 3.400
(1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
The veteran served on active duty from July 1965 to July
1968.
In the veteran’s initial claim for compensation benefits,
received in November 1971, he did not mention PTSD or
psychiatric disability. Following a March 1988 claim for
pension, the RO granted service connection for PTSD effective
in March 1988. The veteran appealed for an increased rating
and by rating action in February 1990, the RO increased the
disability evaluation for PTSD from 10 percent to 30 percent.
The veteran was informed of that decision in March 1990.
Numerous private and VA medical reports, including hospital
and outpatient treatment records prior to 1990 are contained
in the veteran’s claims folder and were available for review
by the RO prior to the February 1990 rating decision. The
medical records show the veteran had a long history of
alcohol abuse. Also it has been reported by health care
providers that, beginning in May 1978 at FMRS Mental Health
Counsel, Inc., that the veteran was diagnosed with
schizophrenia in 1974. The earliest suggestion of PTSD or
symptoms associated with PTSD is contained in November 1984
VA outpatient treatment record which noted that the veteran
had some PTSD symptoms, but that his major problem was
alcohol abuse. At that time there was a notation of “rule
out PTSD.” The first diagnosis of PTSD was on a psychiatric
examination conducted for the VA in October 1988. Since that
time there were numerous private and VA notations of PTSD.
On October 15, 1990, a claim for an increased rating for PTSD
was received.
Records from the VAMC in Beckley, West Virginia, show
treatment for a variety of conditions, including psychiatric
complaints and alcoholism. In October 1991 it was noted that
the veteran’s chronic problems were neuropsychiatric. He was
referred to Dr. Fredman.
In February 1992 Dr. Fredman reported a diagnosis of PTSD.
He stated the veteran was totally incapacitated in his
ability to work, and had been disabled since 1981. A report
of records contained as part of a Social Security disability
determination and an Administrative Law Judge (ALJ) decision
in 1988 show that the veteran was considered disabled since
1985. His disability picture was attributed to a history of
alcoholism and paranoid schizophrenia.
Reports of VA examinations in January 1990, February 1991,
May 1992 and December 1992 all indicate the veteran’s PTSD
was “moderate” in severity.
A March 1993 statement from Joseph Whelan, M.D., reflects
that the veteran has PTSD and had at least a 70 percent
permanent partial psychiatric disability based on PTSD which
had its origins during the Vietnam war.
An April 1992 VA social service survey reflects that the
veteran had last worked 10 years earlier in a CETA program
from which he was terminated because of being late and
smelling of alcohol. The report summarizes the veteran was
not unemployable but severely handicapped by his attitudes of
being totally disabled. It was suspected that his previous
most disabling condition was alcoholism which he had since
curbed. He had been able to secure an adequate education
with a Bachelor’s degree in social work.
II. Analysis
The veteran’s claim is well grounded; that is, it is not
inherently implausible. No further assistance is required to
comply with the VA duty to assist him in developing his
claim. 38 C.F.R. § 5107(a).
For initial consideration is the argument raised by the
veteran concerning whether it would be proper to assign a
total rating for PTSD retroactive to 1981. This argument has
no legal viability since service connection for PTSD was not
even effectuated until 1988. The veteran made no claim for
service connection for PTSD prior to 1988. The effective
date of an evaluation and award of compensation based on
direct service connection will be the day following
separation from service if a claim is received within one
year after separation from service; otherwise the effective
date will be the date of receipt of claim or the date
entitlement arose, whichever is later. 38 C.F.R. § 3.400
(b)(2). Since the veteran’s claim was not received until
many years following his discharge from service, the law
precludes an effective date any earlier than the date of
claim in the instant case. In other words, there is no legal
basis for an award of compensation based on PTSD retroactive
to 1981.
It remains for consideration whether the veteran would be
entitled to an effective date earlier than October 15, 1990.
In February 1990 the RO assigned a 30 percent rating for
PTSD. The veteran was notified of this decision in March
1990 and did not submit a timely appeal. The unappealed RO
action of February 1990 is final absent clear and
unmistakable error which has not been alleged in this case.
38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104(a) (West
1994). Thus, the effective date for a subsequent increase in
the rating for PTSD must be determined in relation to a later
claim for an increase. The veteran submitted a claim for
increased compensation requesting a higher rating for PTSD on
October 15, 1990.
The effective date of an award of increased compensation
shall be the earliest date as of which it is factually
ascertainable that an increase in disability had occurred, if
application is received within one year from such date;
otherwise, the effective date will be the date of VA receipt
of the claim for increase, or date entitlement arose,
whichever is later. 38 U.S.C.A. § 5110(a)(b)(2); 38 C.F.R.
§ 3.400(o).
Since the February 1990 rating decision numerous documents
relating to the veteran’s current PTSD have been received.
Also received since that rating decision was a notation from
a VA doctor in February 1992 that the veteran was totally
incapacitated for work apparently due to PTSD, since 1981.
There was, however, no medical evidence that PTSD prevented
the veteran working prior to the receipt of the February 1992
notation by the VA doctor. There is no evidence that the VA
doctor saw the veteran prior to his reopened claim in October
1990. As there is no evidence that entitlement to a total
disability rating arose prior to his October 1990 application
for increased compensation, an effective date earlier than
the date of the receipt of his claim, for the assignment of a
total disability rating for PTSD cannot be granted. The
preponderance of the evidence is against his claim, and it
must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski,
1 Vet.App. 49 (1990).
ORDER
An effective date earlier than October 15, 1990, for the
assignment of a total disability rating for PTSD is denied.
C.W. SYMANSKI
Member, Board of Veterans’ Appeals
The Board of Veterans’ Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans’ Appeals.
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